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Chandler v. Miller (96-126), 520 U.S. 305 (1997)
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Dissent
[ Rehnquist ]
Opinion
[ Ginsburg ]
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No. 96-126


WALKER L. CHANDLER, et al., PETITIONERS v. ZELL D. MILLER, GOVERNOR OF GEORGIA, et al.

on writ of certiorari to the united states court of appeals for the eleventh circuit

[April 15, 1997]

Chief Justice Rehnquist, dissenting.

I fear that the novelty of this Georgia law has led the Court to distort Fourth Amendment doctrine in order to strike it down. The Court notes, impliedly turning up its nose, that "Georgia was the first, and apparently remains the only, State to condition candidacy for state office on a drug test." Ante, at 2. But if we are to heed the oft quoted words of Justice Brandeis in his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)--"[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country"--novelty itself is not a vice. These novel experiments, of course, must comply with the United States Constitution; but their mere novelty should not be a strike against them.

Few would doubt that the use of illegal drugs and abuse of legal drugs is one of the major problems of our society. Cases before this Court involving drug use extend to numerous occupations--railway employees, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989), border patrol officers, Treasury Employees v. Von Raab, 489 U.S. 656 (1989), high school students, Vernonia School Dist. 47J v. Acton, 515 U. S. ___ (1995), and machine operators, Paperworkers v. Misco, Inc., 484 U.S. 29 (1987). It would take a bolder person than I to say that such widespread drug usage could never extend to candidates for public office such as Governor of Georgia. The Court says that "[n]othing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia's polity." Ante, at 12. But surely the State need not wait for a drug addict, or one inclined to use drugs illegally, to run for or actually become Governor before it installs a prophylactic mechanism. We held as much in Von Raab:

"First, petitioners argue that the program is unjustified because it is not based on a belief that testing will reveal any drug use by covered employees. In pressing this argument, petitioners point out that the Service's testing scheme was not implemented in response to any perceived drug problem among Customs employees . . . .

"Petitioners' first contention evinces an unduly narrow view of the context in which the Service's testing program was implemented. Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today. There is little reason to believe that American workplaces are immune from this pervasive social problem . . . ." 489 U. S., at 673-674.

The test under the Fourth Amendment, as these cases have held, is whether the search required by the Georgia statute is "reasonable." Today's opinion speaks of a "closely guarded" class of permissible suspicionless searches which must be justified by a "special need." But this term, as used in Skinner and Von Raab and on which the Court now relies, was used in a quite different sense than it is used by the Court today. In Skinner and Von Raab it was used to describe a basis for a search apart from the regular needs of law enforcement, Skinner, supra, at 620; Von Raab, supra, at 669. The "special needs" inquiry as delineated there has not required especially great "importan[ce]," ante, at 12, unless one considers "the supervision of probationers," or the "operation of a government office," Skinner, supra, at 620, to be especially "important." Under our precedents, if there was a proper governmental purpose other than law enforcement, there was a "special need," and the Fourth Amendment then required the familiar balancing between that interest and the individual's privacy interest.

Under normal Fourth Amendment analysis, the individual's expectation of privacy is an important factor in the equation. But here, the Court perversely relies on the fact that a candidate for office gives up so much privacy--"[c]andidates for public office . . . are subject to relentless scrutiny--by their peers, the public and the press," ante, at 15--as a reason for sustaining a Fourth Amendment claim. The Court says, in effect, that the kind of drug test for candidates required by the Georgia law is unnecessary, because the scrutiny to which they are already subjected by reason of their candidacy will enable people to detect any drug use on their part. But this is a strange holding, indeed. One might just as easily say that the railroad employees in Skinner, or the Customs officials in Von Raab, would be subjected to the same sort of scrutiny from their fellow employees and their supervisors. But the clear teaching of those cases is that the government is not required to settle for that sort of a vague and uncanalized scrutiny; if in fact preventing persons who use illegal drugs from concealing that fact from the public is a legitimate government interest, these cases indicate that the government may require a drug test.

The privacy concerns ordinarily implicated by urinalysis drug testing are "negligible," Vernonia, supra, at ___(slip op., at 12), when the procedures used in collecting and analyzing the urine samples are set up "to reduce the intrusiveness" of the process. Under the Georgia law, the candidate may produce the test specimen at his own doctor's office, which must be one of the least intrusive types of urinalysis drug tests conceivable. But although the Court concedes this, it nonetheless manages to count this factor against the State, because with this kind of test the person tested will have advance notice of its being given, and will therefore be able to abstain from drug use during the necessary period of time. But one may be sure that if the test were random--and therefore apt to ensnare more users--the Court would then fault it for its intrusiveness. Cf. Von Raab, 489 U. S., at 676, and n. 4.

In Von Raab, we described as "compelling" the government interest "in ensuring that many of these covered employees do not use drugs even off duty, for such use creates risks of bribery and blackmail against which the Government is entitled to guard." Id., at 674 (emphasis added). The risks of bribery and blackmail for high level officials of state government using illegal drugs would seem to be at least as significant as those for off duty Customs officials. Even more important, however, is our treatment of the third class of tested employees in Von Raab, those who "handle[d] `classified' materials." The Court relegates this discussion to a footnote, ante, at 9, n. 3, and all but dismisses it. Although the lack of factual development of the record in Von Raab prevented us from determining who "handle[d] `classified' materials," we did consider the weight of the proffered governmental interest:

"We readily agree that the Government has a compelling interest in protecting truly sensitive information from those who, `under compulsion of circumstances or for other reasons, . . . might compromise [such] information.' Department of Navy v. Egan, 484 U.S. 518, 528 (1988). . . . We also agree that employees who seek promotions to positions where they would handle sensitive information can be required to submit to a urine test under the Service's screening program, especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish their expectations of privacy in respect of a urinalysis test." 489 U. S., at 677.

Although petitioners might raise questions as to some of the other positions covered by the Georgia statute, there is no question that, at least for positions like Governor and Lieutenant Governor, identical concerns are implicated. In short, when measured through the correct lens of our precedents in this area, the Georgia urinalysis test is a "reasonable" search; it is only by distorting these precedents that the Court is able to reach the result it does.

Lest readers expect the holding of this case to be extended to any other case, the Court notes that the drug test here is not a part of a medical examination designed to provide certification of a candidate's general health. Ante, at 16-17. It is all but inconceivable that a case involving that sort of requirement could be decided differently than the present case; the same sort of urinalysis would be involved. The only possible basis for distinction is to say that the State has a far greater interest in the candidate's "general health" than it does with respect to his propensity to use illegal drugs. But this is the sort of policy judgment that surely must be left to legislatures, rather than being announced from on high by the Federal Judiciary.

Nothing in the Fourth Amendment or in any other part of the Constitution prevents a State from enacting a statute whose principal vice is that it may seem misguided or even silly to the members of this Court. I would affirm the judgment of the Court of Appeals.